Lawyers and non-lawyers alike know the
names and holdings of certain landmark Supreme Court
decisions from the last 25 years. A white student is
denied admission by a graduate school of a competitive
state university that employs affirmative action for
members of under-represented racial minorities in its
selection process. University of California Regents
v. Bakke (1978) (racial preferences in school admissions
do not violate federal law if narrowly tailored to
serve a compelling state interest). A state prosecutes
two males for engaging in sodomy in the privacy of
their home. Bowers v. Hardwick (1986) (federal
constitutional right to privacy does not extend to
homosexual sodomy). State prosecutes a group of teenagers
for burning a cross in an African-American’s yard. R.A.V.
v. City of St. Paul (1992) (statute criminalizing
the act of cross-burning violates the First Amendment).Actually,
these aren’t the names of the cases being described,
and there are no holdings yet in any of them. All of
these familiar fact patterns are up before the Court
this term with new names. In each case a key issue
is what the Court actually meant in its earlier decision
involving the same facts. In the most literal sense,
these cases will require the Court to decide now what
it thought it decided before.

In each of the earlier cases, the Court
left enough unanswered to prevent shutting the door
on any of those questions. This may have been due to
the sensitive nature of the issues and the fractured
nature of the justices’ views. By granting review this
year, the Court may be indicating that it is looking
to slam some doors shut or open entirely new ones.
One way or another, the recent grants of certiorari
appear to signal that the Court is ready to speak with
greater finality on these issues. Here’s a closer look
at the new incarnations of some familiar cases, how
they resemble and differ from their prior versions,
and the possible changes these cases could bring.

Affirmative ActionGiven the unclear
mandate of the Bakke decision,
perhaps the least surprising grant of certiorari of
this group is that in the University of Michigan affirmative
action cases from the 6th Circuit: Grutter v. Bollinger and Gratz
v. Bollinger. The Court has already shown that
it wished to decide this issue a few terms ago, granting
cert in Taxman v. Piscataway Bd. Of Educ. (3d
Cir. 1996); but the parties thwarted that effort by
settling on the eve of oral argument. As a result,
since Bakke, the Court has given lower courts
little help in the unenviable task of discerning the
controlling holding of Bakke and applying it.

Under review in Bakke was the
two-track admissions process used by the Medical School
of the University of California at Davis in 1973 and
1974. The regular admissions program required a minimum
grade point average (GPA) and evaluated interviewed
candidates based on their GPA, MCAT scores, letters
of recommendation, extracurricular activities and other
biographical data. Under the special admissions program,
available primarily to disadvantaged applicants of
color, candidates did not have to meet the grade point
average cutoff and, though evaluated in a similar manner,
were not ranked against candidates in the regular process.
Sixteen out of 100 students in the class were to be
admitted from the special process each year. All those
admitted under the special program were people of color,
and at least some of them had GPAs and test scores
significantly lower than that of Bakke, an unsuccessful
white applicant.

The Bakke opinions were destined
to sow confusion. There were six opinions in Bakke,
none of which was supported in full by more than four
justices. Justice Powell, announcing the Court’s judgment
that Bakke be admitted but writing only for himself,
concluded that Title VI of the Civil Rights Act of
1964 only proscribes those racial classifications that
would violate the Equal Protection Clause; that the
goal of achieving a diverse student body is sufficiently
compelling to justify consideration of race in admissions
decisions under some circumstances; but that the medical
school’s special admissions program was not necessary
to achievement of racial diversity and was therefore
invalid under the Equal Protection Clause. The only
substantive part of the Powell opinion joined by a
majority of the Court was the narrow paragraph holding
that 'the State has a substantial interest that
legitimately may be served by a properly devised admissions
program involving the competitive consideration of
race and ethnic origin. For this reason, so much of
the California court’s judgment as enjoins petitioner
from any consideration of the race of any applicant
must be reversed.' Whatever this section means,
it did not purport to identify the precise substantial
interest served or exactly how much consideration of
race is acceptable. The four justices who joined that
statement — Brennan, White, Marshall and Blackmun — justified
the medical school’s use of race as a sufficiently
important purpose on remedial grounds: that is, it
helped overcome discrimination causing a chronic minority
underrepresentation in the medical profession. There
was no fifth vote for Justice Powell’s diversity grounds.
Further, the four justices who believed remediation
was a valid interest applied intermediate (rather than
strict) scrutiny to the medical school’s use of race.
Writing for the other four justices (who agreed with
Powell’s result but not his reasoning), Justice Stevens
concurred in the judgment, but only insofar as it affirmed
the lower court’s judgment ordering Bakke admitted
to the medical school. These four justices would not
have reached the issue of whether race can ever be
a factor in an admissions policy and would have found
that Bakke was excluded from the medical school in
violation of Title VI, rather than deciding the constitutional
question under the Equal Protection Clause.

If the ultimate holding(s) in Bakke seem
unclear, you are not alone. For example, while the
5th and 11th circuits have found that Justice Powell’s
opinion did not resolve whether racial diversity was
a compelling interest, the 6th and 9th circuits have
concluded that Justice Powell’s diversity rationale
constitutes a holding of the Court. Further, the lower
courts have split regarding how much the nature and
weight of the preference bears on the question of whether
the program is narrowly tailored.

The most recent affirmative action programs
to be challenged are those implemented by the University
of Michigan, both in its undergraduate program and
law school. Focusing on the law school, the facts — to
quote Yogi Berra — are 'déjà vu
all over again,' at least until the particulars
of the respective admissions programs are examined.
In Grutter, a white female, Barbara Grutter,
was denied admission to the University of Michigan
law school, and claimed that she had been discriminated
against on the basis of her race in violation of Title
VI and the Equal Protection Clause. Michigan’s law
school admissions policy describes 'a commitment
to racial and ethnic diversity with special reference
to the inclusion of students from groups which have
been historically discriminated against, like African-Americans,
Hispanics and Native Americans, who without this commitment
might not be represented in our student body in meaningful
numbers,' and that such students 'are particularly
likely to have experiences and perspectives of special
importance to our mission.' Although the law school
considers race in seeking to enroll a 'critical
mass' of underrepresented minority students, it
does not set aside a set number or percentage of seats
as the medical school did in Bakke.

Because it is framed as a challenge under
both the Equal Protection Clause and Title VI of the
Civil Rights Act (like in Bakke), the Bollinger cases
will likely force the Court to address squarely whether
Justice Powell’s diversity rationale actually constitutes
a compelling interest. Further, if the Court adopts
Justice Powell’s view (something that few court-watchers
expect), it will also have to define what it means
for an affirmative action program to be narrowly tailored
to the goal of diversity. This second step will raise
more hard questions: First, is the law school’s aim
of admitting a 'critical mass' of underrepresented
minorities sufficiently distinct from the 'quota' rejected
by Justice Powell in Bakke? Second, what are
the constitutional limits on the weight of the 'plus'-factor
(borrowing Justice Powell’s terminology) attributed
to an applicant’s race? Counsel for Grutter will likely
emphasize that data reveals a large disparity in GPAs
and LSAT scores between underrepresented minorities
and others, which would suggest that minority applicants
are receiving more than a mere 'plus.' Counsel
for the University, however, may counter that the disparity
if anything shows only the vital need for affirmative
action, since absent meaningful consideration of race,
the number of minority students who could contribute
to a diverse educational environment presumably would
be much lower. When it comes to admission to top law
schools, which hold the keys to the realms of public
policy and governance, the justices may find that either
way they decide the question, they could be seriously
affecting educational policy and equal opportunity.

Advocates of affirmative action probably
have good reason to be nervous. If the ordinary liberal-conservative
split were to apply — meaning that the liberals would
need to attract either Justice O’Connor or Kennedy
to prevail – the chances for a decision favoring affirmative
action are slim. Both Justice Kennedy’s and Justice
O’Connor’s votes in the most recent affirmative action
cases — Croson, Metro Broadcasting and Adarand — reflect
great skepticism of affirmative action and a desire
to apply strict (albeit not 'fatal') scrutiny
to any race-based program. But, even if either Justice
O’Connor or Justice Kennedy votes to uphold the program,
Justice Stevens could leave the liberals one vote short.
After all, in Bakke he authored the opinion
(joined by Chief Justice Rehnquist, the only other
member from that term still serving) finding that the
medical school’s admissions process violated Title
VI, and that thus there was no need to reach the equal
protection question.

Homosexual SodomyAs in Bowers, Lawrence
v. Texas involves
a challenge by two men to a state law criminalizing
sodomy. In Bowers, the Court, by a 5-4 margin,
rejected the contention that homosexual activity, even
among consenting adults in the privacy of one’s home,
is a fundamental right under the Due Process Clause
of the 14th Amendment and thus largely beyond the reach
of state regulation. Although petitioners in Lawrence ask
the Court to overrule Bowers, many doubt that
the current Court would dispense with stare decisis
and now deem homosexual conduct to be a fundamental
right under the Constitution. This is particularly
true since the fundamental rights analysis at issue
involves a historical component that is supposed to
be divorced from current social changes.

But despite the concern that Bowers will
survive, the statute in Lawrence lends itself
to a new set of legal challenges. The Bowers Court
construed the specific challenge before it as one limited
to consensual homosexual sodomy, even though the statute
in Bowers criminalized sodomy irrespective of
the genders of the participants. The criminal statute
at issue in Lawrence, however, only applies
to people who engage in sodomy 'with another individual
of the same sex.' Therefore, petitioners can bring
a facial challenge to the Texas sodomy statute under
the Equal Protection Clause: it prohibits a Texas man
from engaging in the same act with a man that a Texas
woman can lawfully engage in. Although petitioners
argued in the lower courts that the statute effectuates
a gender-based classification (petitioners would not
have been convicted if one of them was a woman), the
argument made to the Court will focus on the distinction
drawn between homosexual and heterosexual sodomy as
discrimination based on sexual orientation. While such
discrimination is typically subject to only rational
basis review under the Equal Protection Clause, the
Court stated in Romer v. Evans (1996) that laws
that disadvantage homosexuals violate equal protection
when born of animosity toward that group. The deciding
factor will likely be whether the Court finds that
the line drawn by the Texas statute — incidentally
a line not drawn until the 1970s when the general sodomy
laws were repealed — is justified by the state’s invocation
of 'moral standards' and 'family values,' or
whether it is viewed as an illegitimate expression
of animus towards homosexuals.

At the time of Bowers, 24 states
plus the District of Columbia still had sodomy laws.
Since then, half of those jurisdictions have legislatively
repealed or judicially invalidated those laws, including
several same-sex-only sodomy laws. Today, only 13 states
still criminalize consensual sodomy between adults
and just 2 states (including Texas) currently have
same-sex sodomy laws in full force and effect. Following
this trend, combined with increasing societal tolerance
toward homosexuality and the presentation of a distinct
(and perhaps more palatable) legal theory, the Court
might be inclined to come to a different conclusion
than it did in Bowers. Although two of the current
justices — Rehnquist and O’Connor — were in the Bowers majority,
perhaps the option of prohibiting a state from singling
out homosexual sodomy for criminal punishment, without
having to declare such conduct a fundamental right
under the Constitution, could provide a new middle
ground for the Court.

Cross-BurningFinally, the free speech
issue in Virginia
v. Black, the current cross-burning case, brings
to the forefront a decision by the Court from just
a decade ago; indeed, all but two of the members
of the Court from the earlier R.A.V. decision
are still on the Court today. Ordinarily, this might
indicate a belief that those who were in the minority
before think changes in the Court’s composition might
yield a different result. However, it is unlikely
that either Justice Breyer or Justice Ginsburg would
vote differently than their predecessors. Rather,
the Court’s decision to grant review may signal that
one or more justices (including possibly Justice
Thomas) is inclined to further refine their earlier
views after seeing the R.A.V. decision applied
in the lower courts.

In R.A.V., the petitioner was
charged under the city’s Bias-Motivated Crime Ordinance
after allegedly burning a cross on an African-American
family’s lawn. That ordinance criminalized the placement
of any symbol, 'including, but not limited to,
a burning cross or Nazi swastika, which one knows … arouses
anger, alarm or resentment in others on the basis of
race, color, creed, religion or gender.' Writing
for the Court and joined by Chief Justice Rehnquist,
Justice Kennedy, Justice Thomas and Justice Souter,
Justice Scalia held that the ordinance was facially
unconstitutional because it imposed special prohibitions
on those speakers who express views on the disfavored
subjects of 'race, color, creed, religion, or
gender,' while still permitting displays containing
abusive invective if they are not addressed to those
topics. The majority notably added: 'Let there
be no mistake about our belief that burning a cross
in someone’s front yard is reprehensible. But St. Paul
has sufficient means at its disposal to prevent such
behavior without adding the First Amendment to the
fire.' The other justices (including Justices
O’Connor and Stevens), though concurring in the judgment
on 'overbreadth' grounds (because the statute
criminalized not only unprotected expression but also
expression protected by the First Amendment), disagreed
with the majority’s 'underbreadth' analysis
and generally sanctioned restrictions on cross-burnings
that pose a threat to individuals as permissible under
the First Amendment.

In Virginia v. Black, the defendants
were also prosecuted for cross-burning, but under a
different statute that makes it unlawful for persons 'with
the intent of intimidating any person or group of person,
to burn … a cross on the property of another, a highway
or other public place.' The Virginia statute appears
narrower than the St. Paul statute in some respects
yet broader in others. It is narrower because the statute
only proscribes cross-burning performed with the intent
to intimidate others, rather than the placement of
any symbol that one knows could cause anger, alarm,
or resentment. For the concurring justices from R.A.V. (Stevens
and O’Connor), this statute thus might not pose the
same overbreadth concerns as the prior statute did.
The current statute is broader, at least facially,
in that it does not expressly limit the basis of proscription
to selected subjects such as race or religion. Whether
this statute is still found to raise underbreadth concerns — because
it selectively targets just cross-burning — similar
to those considered fatal by the majority (all five
of whom are still on the Court) in R.A.V. could
be the decisive legal factor.

If oral argument is any indication, Justice
Thomas might be the driving force behind re-addressing
an issue confronted by the Court just 10 years ago.
Justice Thomas, usually quite reticent at oral argument,
poignantly characterized the burning cross as the symbol — unlike
any other symbol in our society — of the 'reign
of terror' in the South, whose sole purpose was
not to communicate but to 'cause fear and to terrorize
a population.' Whether he is willing to distinguish
or modify his view in R.A.V. remains to be seen,
but, if so, he could be one of the five justices from
the R.A.V. majority who vote to save this statute.

Just when you thought the Supreme Court
was starting to recede from the limelight of Bush
v. Gore and primetime television series, it has
decided to reconsider the hot-button issues of affirmative
action, homosexual sodomy and hate crimes. On one extreme,
the decision to hear these cases could reflect only
an entrenchment of the Court’s majority: reflecting
a desire to eliminate lower court efforts to navigate
around the results in Bakke, Bowers and R.A.V. On
the other extreme, the grants of certiorari could be
a sign that the Court is ready to reshape some of its
earlier jurisprudence. Regardless of where one falls
on the spectrum of judicial philosophy, this term promises
to be more than just a remembrance of things past,
but a memorable one in its own right.

ABOUT THE AUTHORJeff Bleich is a litigation partner at Munger,
Tolles & Olson in San Francisco and currently serves
as president of the Bar Association of San Francisco.
He clerked for Chief Justice Rehnquist in 1990 and
teaches constitutional law at Boalt Hall. Bleich is
a frequent contributor to the OSB Bulletin, in addition
to his bar association’s San Francisco Attorney magazine.
Pratik Shah is a litigation associate at Munger, Tolles & Olson,
and will be clerking for Justice Stephen Breyer on
the U.S. Supreme Court beginning in July. Together
Bleich and Shaw authored an amicus brief on behalf
of various Latino organizations in support of the University
of Michigan’s admissions program in Gratz v. Bollinger,
et al.